The Allahabad High Court has said that Rape is not only a crime against the victim, it is crime against the society as well and is also violative of victims most cherished of fundamental rights, mainly right to life contained in Article 21 of the Constitution of India. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system.
A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Chndra Prakash Sharma.
By means of the application under Section 439 of Cr.P.C, applicant, who is involved in Case under Sections 354, 376 IPC and Sections 5/6 POCSO Act, police station Bansgaon, district Gorakhpur seeks enlargement on bail during the pendency of trial.
As per prosecution case, the complainant, who is mother of the victim lodged the first information report on 16.07.2021 at 17:07 hours with regard to an incident which took place on 16.07.2021 against the applicant Chandra Prakash Sharma for the alleged offence under Sections 354, 376 IPC and Sections 5/6 POCSO Act.
Thereafter, on the same day, i.e, on 16.07.2021, the victim was medically examined in which doctor opined that sexual violence cannot be ruled out. Victim in her statements under Section 161 and 164 Cr.P.C has made allegation of rape against the applicant reiterating the prosecution case as mentioned in the first information report.
It is submitted by the counsel for the applicant that the applicant has been falsely implicated in the case. No mark of injury has been found on the body of the victim and hymen of the victim was found intact and no fresh injury or bleeding was seen at the time of her medical examination. The victim in her statement under Section 164 Cr.P.C has not stated that the applicant has committed rape on her, as such, no offence is made out against him. The applicant does not have criminal history to his credit. His bail application has been wrongly rejected by the concerned Court below.
Lastly, it is submitted by the counsel for the applicant that the applicant is languishing in jail since 17.07.2021 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Per contra, Additional Government Advocate assisted by Brief Holder for the State opposed the prayer for bail of the applicant by contending that the first information report was lodged by mother of the victim on the narration of the incident by the victim who is a minor child aged about 8 years and is a student of Class 2.
It is next submitted that act committed by the accused-applicant as mentioned in the F.I.R and disclosed by the victim in her statement under Section 164 Cr.P.C is a heinous offence and comes within the ambit of rape as defined under Section 375 I.P.C as well as under the ambit of Sections 5/6 POCSO Act. There is no reason to falsely implicate the applicant.
A.G.A next submitted that it is well settled by the Apex Court in the case of Madan Gopal Kakkad Vs Naval Dubey and another, (1992) 3 SCC 204 that even slightest penetration of penis into vagina without rupturing the hymen would constitute rape.
He further submitted that in the case, the applicant not only violates the victim’s personal integrity, but leaves indelible marks on the very soul of the helpless child. Innocence of the applicant cannot be ad-judged at pre-trial stage. Hence, the bail application of the applicant is liable to be rejected.
Having heard the counsel for the parties, the Court is of the view that in the case, a small innocent child aged about 8 years has been raped, who does not understand its meaning. Little girls are worshipped in our country, but the cases of paedophilia are increasing. Rape is a heinous crime. The victim suffers from psychological effects of embarrassment, disgust, depression, guilt and even suicidal tendencies. Many cases go unreported.
“In almost rape cases, the victim was unwilling to report the name of the abuser. The families of the victim remain silent about the sexual offences in order to protect the family image. The victim/female small child experience sexual abuse once tend to be more vulnerable to abuse in adult life. Healing is slow and systematic.
Rape is not only a crime against the victim, it is crime against the society as well and is also violative of victims most cherished of fundamental rights, mainly right to life contained in Article 21 of the Constitution of India. In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system”
-the Court said.
The Court found that, if rape is committed by a man on a little girl under twelve years of age, according the provisions of Section 376A-B of Indian Penal Code, he shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which means that the accused shall be in prison for the remainder of his natural life, and with fine or with death.
“Having examined the matter in its entirety I do not find any material or cogent reason at this stage to presume the false implication of the applicant. I am also of the considered view that the depth of penetration is immaterial in an offence punishable under Section 376 I.P.C.
Having considered the facts and circumstances of the case, nature of offence, the gravity involved therein and the manner in which the crime has been committed, no case for bail is made out”
-the Court observed while rejecting the bail Application.
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